Friday, July 12, 2013

Private Searches, the 4th Amendment and the Cell Phone

U.S. Air Force Technical Sergeant (E–6) Samuel A. Wicks is charged
(in what I assume is a court-martial) with

violating a lawful general regulation
by wrongfully attempting to develop and conduct personal and/or sexual
relationships with three female airmen while they were trainees and he was a
military training instructor (MTI) at Lackland Air Force Base between 2010 and
2011; engaging in indecent conduct with one of those trainees by sending her a
sexually explicit video-recording; and obstructing justice by telling one of
the trainees to lie to investigators about her personal contact with [him].

He moved to suppress “all evidence found during an
analysis of [his] cellular phone as well as all derivative evidence”; the judge granted the motion and found the prosecution “had failed to
satisfy its burden of showing that the evidence would have been inevitably
discovered.”U.S. v. Wicks, supra.When
the judge denied a request that he reconsider his ruling, the prosecution
appealed the ruling to this court pursuant to Article 62 of the Uniform Code of Military Justice.U.S. v. Wicks, supra.

The appellate court began its opinion by noting that it
reviews a ruling on a motion to suppress “for an abuse of discretion” and
considers the evidence in the light most favorable to the prevailing party,
which was Wicks. U.S. v.
Wicks, supra.It then explained how he came to be charged:

[Wicks] was a military training
instructor (MTI) at Joint Base Lackland, Texas, whose duties included
instructing new recruits during basic training. At one point, he developed a
personal relationship with TSgt Roberts, a fellow MTI at Lackland. In November
of 2010, while the two were at [Wicks’] house, Roberts began to look at text
messages on [Wicks’] smart phone (phone) while he was asleep. The military
judge did not make findings of fact about what Roberts specifically observed
during that viewing. By early December 2010, Roberts and [Wicks] were no longer
involved in a personal relationship.

In May 2011, [Wicks] left his phone on
a desk in his duty station. Unbeknownst to the [him], Roberts took the phone
and looked at several text messages that suggested he had been in contact with
former female trainees. She also saw pictures of several women who she
recognized as prior trainees in the squadron, as well as a video recording of a
male (who she believed to be [Wicks]) masturbating. Roberts kept the phone at
her home and lied to [Wicks] when he asked if she knew where it was.

Approximately three weeks later, Roberts
confronted [him] about the information she had seen on his phone. He
acknowledged sending the text messages and told Roberts to `get out of his
face.’ The two parted company without any discussion about the whereabouts of
the phone.

In the May-June 2011 time frame, [Wicks]
contacted LB and told her a co-worker had taken his phone and there might be an
investigation. [Hes] was LB's MTI during basic training between December 2010
and February 2011 and the two stayed in contact until April 2011. He told
her not to worry and, if asked, to say she and [he] had no contact after she
graduated from basic training. Her impression was that [Wicks] was a little
worried when he talked to her and was encouraging her not to say anything.

concerning an ongoing investigation
into MTI misconduct at Lackland. At the time of this meeting, [Wicks] was not
suspected of wrongdoing. . . . Roberts told the detective she had seen text
messages on [Wicks’] phone she believed was [sic] evidence of misconduct. Roberts
told AR she had downloaded the contents of [Wicks’] phone onto her iTunes
account while he was asleep. She also provided e AR with the last names of two
prior trainees (SrA LB and A1C SW).During the interview, Roberts told
ARshe confronted [Wicks] about the
information she discovered on the phone and that [he] acknowledged having sent
the text messages.

The next day, Roberts gave AR the SIM
card from [Wicks’] phone, but did not inform her of how she obtained the card.
Although AR did not know Roberts had stolen the phone and SIM card, she
believed that the data belonged to [Wicks] and had been taken from him without
his consent or knowledge. AR spoke to the base legal office, but did not
request a search authorization to review the contents of the phone. The SIM
card was subsequently analyzed but no information was found.

On 17 January 2012, Roberts brought [Wicks’]
phone to AR. Roberts lied to the detective, saying it belonged to a third
person. After Roberts left, AR turned on the cell phone and reviewed an
indeterminate number of text messages. When she did the search, AR was unaware
of specifically what text messages Roberts had previously seen.

U.S. v. Wicks, supra.

All of this is important because, as I have explained in
prior posts, the 4th Amendment’s guarantees that citizens will be
free from “unreasonable” searches and seizures only apply to searches and/or
seizures conducted by law enforcement officers.Those guarantees do not apply to conduct initiated by a private citizen
. . . or, as they are usually know to “private searches” or “private seizures.”
If you are interested, you can read more about that in this article.

The issues, then, are (i) whether Roberts was acting as
a private citizen with regard to Wicks’ phone and (ii) whether the subsequent
law enforcement searches exceeded the scope of what she did.If law enforcement only looked at what she
looked at, the 4th Amendment would not be violated.If law enforcement went further, then the
additional searches and seizures would implicate the 4th Amendment
and would have to be justified by a warrant or an exception to the warrant
requirement.

As to that, the opinion explains that the military judge in
this case found that

AR `did not mirror the actions’ taken
by Roberts and instead engaged in a `general search’ of the phone. The
detective testified that there were so many texts in the phone that she
reviewed and scrolled through them until something caught her attention. She
did not make copies of the messages she reviewed nor take notes about what she
saw as she anticipated a full analysis and extraction of the phone would be
conducted.

During this initial review, AR recalled
seeing a text referencing an airman's name (Amn KS) and, through a review of
flight rosters, determined the appellee had been the MTI for an airman by that
name. She also saw a picture of a female airman dressed partially in a military
uniform.

U.S. v. Wicks, supra.

This review allowed AR to

corroborate some of the information
provided by Roberts. She again spoke with the legal office for guidance and was
told to get the information from the phone. There appears to have been no
discussion concerning a need to obtain a search authorization before analyzing
the phone's contents. The phone was sent to the Bexar County Sherriff's Office
for forensic analysis. After reviewing the results, AR realized [Wicks] was the
only person whose information was on the phone (up to this point, Roberts had
maintained that the phone belonged to someone other than [him]).

U.S. v. Wicks, supra.

On March 28, 2012, the phone was shipped to “a commercial
company for examination.” U.S. v. Wicks, supra.An analyst “searched the 45,000 text messages
on the phone for texts involving three particular phone numbers and created a
report.” U.S. v. Wicks, supra. The
information in his report “reflected texts that would have been viewable by
both TSgt Roberts and Detective AR and a small number that would not have been
accessible as they were “deleted” items.”U.S. v.
Wicks, supra.In a footnote, the
appellate court explains that “[t]These phone numbers belonged to SrA LB
(whose name had originally been provided to AR by Roberts in her 10 January
2012 interview), and two other female airmen, AIC LR and SrA KR.” U.S. v. Wicks, supra.

Based on information in the texts, AR “spoke with Amn KS who
said” LB and Wicks “had been involved in some type of personal relationship.” U.S. v.
Wicks, supra.In March 2012, AR
interviewed LB in person; AR brought the texts to the interview but did not
show them to LB. U.S. v. Wicks, supra.Instead, AR referred to the text
messages and LB “confirmed the information contained in” them. U.S. v. Wicks, supra.“LB's perspective was that the investigators
already had all the information and only sought her confirmation of the matters.”
U.S. v. Wicks, supra.Until then, “LB had not reported any
interactions with” Wicks. U.S. v. Wicks,
supra.

In granting the motion to suppress, the military judge found
Roberts was “acting in her private capacity when she searched [Wicks’] phone in
November 2010 and in seizing and searching the phone in May 2011”, and held
that her actions did not violate the 4th Amendment. U.S. v. Wicks, supra (citing U.S. v. Jacobsen, 466 U.S. 109 (1984)). The judge also held, however, that

`to the extent [the detective] exceeded
the scope of Roberts's review,’ it was in violation of the 4th Amendment as she
was permitted under the law to `go only as far as th[at] private search.’ The
military judge considered the `scope’ of Roberts's review to be limited to only
the items she actually observed, and it was unlawful for the detective to
inspect other text messages without a search authorization.

Because the Government was unable to
show with sufficient specificity which text messages Roberts saw when she went through
the phone, all evidence recovered by AR from [Wicks’] phone as well as any
evidence derived from those texts (to include the information relating to LB)
was obtained in violation of the 4th Amendment.

U.S. v. Wicks, supra.

In reviewing the military judge’s ruling, the appellate
court agreed with his conclusion

that Roberts's private searches of [Wicks’]
phone do not implicate the 4th Amendment, no matter how unreasonably she acted.
. . . Accordingly, we conclude that the exclusionary
rule was not triggered by any private invasion of [his] privacy.

U.S. v. Wicks, supra.It also found that AR could “view and
the Government could take possession of the texts, photograph, and
video-recording seen by TSgt Roberts without implicating 4th Amendment
concerns.” U.S. v. Wicks, supra.

It disagreed with his conclusion that “AR's review of the
text messages was limited to the precise messages seen by TSgt Roberts.” U.S. v. Wicks, supra.It noted that the key issue in the case was,
as noted above, whether law enforcement “are limited to only examining files
inspected by the private party (as the military judge found) or whether all
readily observable data on the electronic device is within the scope of the
initial private search and thus can be obtained by law enforcement.”U.S. v.
Wicks, supra.

Since the court was “unaware” of any military cases
addressing this issue, it chose to adopt the reasoning and conclusion of the
U.S. Court of Appeals for the 5th Circuit in U.S. v. Runyan, 275 F.3d 449 (2001). U.S. v. Wicks, supra.Runyan’s
wife found

several computer disks belonging to her
husband. After viewing some . . . and finding child pornography, she turned all
the disks over to law enforcement. Detectives examined not only the files the
wife had observed, but also examined the contents of all the seized evidence,
to include disks the wife had not searched. During the search, additional child
pornography was located on the disks that the wife saw.

The court likened a computer disk to a closed
container and held that `[i]n the context of a closed container search . . .
police do not exceed the private search when they examine more items within a
closed container than did the private searchers.’ U.S. v. Runyan, supra. . Applying the ``11th Circuit's
analysis in U.S. v. Simpson, 904 F.2d 607 (1990), the court
stated that `[i]n the context of a search involving a number of closed
containers, this suggests that opening a container that was not opened by private
searchers would not necessarily be problematic if the police knew with
substantial certainty, based on the statements of the private searchers, their
replication of the private search, and their expertise, what they would find
inside. Such an “expansion” of the private search provides the police with no
additional knowledge that they did not already obtain from the underlying
private search and frustrates no expectation of privacy that has not already
been frustrated.’ U.S. v. Simpson, supra.

The court concluded that `a defendant's
expectation of privacy with respect to a container unopened by the private
searchers is preserved unless the defendant's expectation of privacy in the
contents of the container has already been frustrated because the contents were
rendered obvious by the private search.’ U.S.
v. Simpson, supra.Thus, police do
not engage in a new search for 4th Amendment purposes each time they examine a
particular item found within the container. U.S. v. Simpson, supra.

U.S. v. Wicks, supra.

The military appellate court found the 5th
Circuit’s reasoning

to be persuasive and conclude the
military judge incorrectly interpreted the law when he held that AR's search
had to exactly mirror Roberts's search in order to be lawful. We read the
Supreme Court precedent to be more concerned with the scope of the private
party's search and the corresponding frustration of [Wicks’] right to privacy
rather than creating an uncompromising rule based only on examining the
Government's success in precisely replicating the physical intrusion already
perpetrated by the private party.

U.S. v. Wicks, supra.

The court also noted that AR’s viewing of Wicks’ phone

is analogous to examination of the
computer disks in Runyan. Before Roberts took the phone, the phone
and its contents were akin to a `closed container’ in which [Wicks] maintained
a privacy interest. However, once Roberts breached the container by looking at
the messages, [Wicks’] expectation of privacy with respect to all of the text
messages (with the exception of the deleted texts) was frustrated. This fact is
borne out by [Wicks’] own action in calling and telling her there might be an
investigation as a result of the text messages.

U.S. v. Wicks, supra.

It therefore held that AR did not violate

the 4th Amendment when
she viewed different text messages located on the phone. AR's search was no
different in character than the one conducted by Roberts, even though the individual text
messages that were opened by the former may have been different.

U.S. v. Wicks, supra.

It also found that the

extraction of the text messages
relating to the three women by the Sheriff's Office and the commercial company
was not an unconstitutional expansion on the original private search. Each non-deleted
text extracted by those entities was viewable by Roberts when she conducted her
private search, and therefore [Wicks’] expectation of privacy in the texts was
frustrated. Although the better practice would have been for AR to seek a
search warrant prior to having those text messages extracted, we do not find
the extraction to have been unconstitutional.

U.S. v. Wicks, supra.

The court therefore vacated the military judge’s order
granting the motion to suppress and remanded the case for further proceedings. U.S. v. Wicks, supra.